FleetOwner previously covered the defense side’s perspective to avoiding nuclear verdicts. Now, here is one plaintiff attorney’s advice to prevent your fleet from becoming the next casualty.
“Unless you have an insurance power of $25 to $50 million, most motor carriers are one catastrophic crash away from closing their doors,” warned plaintiff lawyer Jeff Burns, founding partner of Dollar, Burns & Becker during FleetOwner's recent webinar “Both Sides of the Legal Equation: An Insider’s Perspective on Fleet Safety.”
The experienced lawyer, who has consulted on hundreds of truck crash cases, said he had one simple purpose for participating in the SmartDrive-sponsored webinar: to tell the audience “how exactly to beat me in court.”
That’s not an easy proposition, as Burns’ firm has won $250 million in settlements for its clients. He also researches every headline-making mega verdict, or award of $5 million or more, in the U.S., interviewing each case’s plaintiff and defense attorneys.
The first thing to know is that all those cases had something startling in common.
“In every case I’ve looked into, each of those could have been settled for a significantly lower number,” he said.
But why?
“Some adjusters and some executives think that the answer to the problem is hardball, and they sometimes make no offer or a ridiculously low offer,” Burns said.
In one case, he said two people died, one person lost a leg, and three others were injured. The carrier’s defense team offered $650,000, which would not even cover medical expenses. Burns said he would have settled for a “small fraction” of the eventual $28 million payout.
That might help once tragedy strikes, but Burns’ underlying intentions were to ideally avoid accidents altogether, and at the least, provide transportation and logistics companies some protection against mega verdicts. The way to do this is to avoid any appearance of malice or indifference to safety on the part of the carrier. In other words, fleets need an unassailable safety program.
“Your best day in court after a preventable crash is if you can show the jury that your driver was highly qualified, well trained, well supervised and well monitored, and that the crash was the result of pure driver error,” Burns said. “You had a good driver who just made an honest mistake.”
He said the jury would be less likely to levy a huge payout over one driver’s mistake if the company proved to breed a strong safety culture.
That works both ways, though. A company’s safety culture and training record can lead to legal salvation or damnation.
“If the reason for the failure was [the motor carrier] was putting profits over the safety of the motoring public, the closer I can get to showing malice or indifference to safety and shooting for punitive damages,” Burns said.
But how do fleets know where they may be indifferent, or where they are vulnerable to litigation?
Safety isn’t taken seriously.
Burns stressed that “safety” is not interchangeable with “compliance.”
“Compliance is the minimum standard that you can comply with to be legal,” he said. “That doesn't mean that you're safe. You can be fully compliant and still have a dangerous, dangerous operation that is a catastrophic crash waiting to happen.”
And more than anything, the objective of a transportation-minded safety department is to reduce the severity and frequency of crashes.
“The purpose is not to comply with some imposed federal regulations that are compromises set by politicians and regulatory agencies that are also overseen by politicians,” Burns asserted.
Safety is also not a platitude that leads every driver’s manual but becomes an afterthought during a just-in-time delivery. Burns said every manual given to him during the discovery phase of court proceedings preaches “safety is our highest priority” or “your number one job is safety,” but they don’t all practice that sentiment.
“It's good to say that, but if it isn't true, we can prove it,” Burns said. “And most of the time we prove that it's a lie.”
Burns will have access to a fleet’s files and data and uncover the truth.
“Companies measure what they treasure,” he said. If speed and hitting delivery times are more valued than getting the load there safely, he’ll know. And this culture will put excess pressure on the drivers, who Burns said “will move heaven and earth, come hell or high water” to make that delivery window.
This is why every fleet needs a safety expert dedicated to making sure safety is stressed most of all. Burns said this person should consider their fleet’s particular operations and how they relate to federal regulations. The safety expert should also be able to identify an operation’s risks and then create barriers between the company and that risk.
According to Burns, here are some common weak points:
Fatigue prevention
A fleet can adhere to federal hours of service regulations and still foster an unsafe environment and breed fatigue issues. For example, Burns said a dangerous practice is to have a driver on a shifting schedule could be sleeping at 11 p.m. on Day 1 and then be expected to drive during that period on Day 3.
The scientific reason is that this messes with the driver’s circadian rhythms. The FMCSA found that between 12 a.m. to 6 a.m. and 2 p.m. to 4 p.m. are when the body becomes naturally drowsy, and time of day counts more than time on task.
The FMCSA also advocates against caffeine as a “pick-me-up,” citing short naps as the more effective energy restoration method. There’s some scientific backing to the efficacy of “coffee naps,” though common sense dictates that drivers of 40 tons trucks should not be the ones to test that theory.
Even if a carrier’s driver fell asleep, if the safety director can show a data-backed plan was in place to avoid drowsy driving and that when drivers need to pull over, they aren’t punished, that would substantiate the fleet does indeed put safety over profits.
Distractions
Distracted driving is as dangerous as drowsy or drunk driving, so every fleet should be aware of that. But fleets may not be aware of the dangers of hands-free phone calls on the road.
A study undertaken by the AAA Foundation and led by cognitive neuroscientist David Strayer of the University of Utah concluded that hands-free and handheld phone calls had an equal value of “2,” or having moderate risk. Listening to the radio warranted a “1,” while responding to emails via voice commands scored a “3" for extensive risk.
When studies like this are presented to a jury, a safety director will have to justify why they allowed their driver to take any call, even hands-free, when they are working.
A plaintiff lawyer could subpoena former drivers to go on record about their phone habits on the road, as well as establish a pattern of indifference to what would convince the jury was reckless behavior.
Ignorance of the data is also not a defense for a safety director deposed by Burns. He said he would question them on if they know the dangers of the potentially distracting behavior.
“I don't care what the answer is,” Burns said. “It doesn't matter because if they aren't aware of the science, they're not doing their job. Then you have an incompetent safety program and you were negligent. But if you did know it, and you still allowed it, at that point, you're indifferent.”
Technology
In a crash event, the plaintiff attorney can also ask, “What equipment and technology were available, and why wasn’t it used?”
This is another no-win situation for the defense, because the data generated from telematics systems would have warned a fleet manager about a particular driver’s risky actions on the road. Advanced Driver Assistance Systems (ADAS) will give visual and audio alerts when the truck is at risk of collision, drifting into another lane, or following too closely (a speed dependent distance equal to 1.5 seconds).
Outward-facing cameras can also detect speed limit markers and record external environment, while inward-facing ones could detect smoking, phone calls or other distracted behavior.
“You've got ways to know how many times this guy got out of his lane without turning his blinker on, how many times he weaved out his lane, and how many hard-braking events he had,” Burns explained.
In Burns’ first truck crash case, he recalled the trucker was seen “weaving on and off the road onto the shoulder for 80 miles and finally marker 79 on Interstate 70 in Missouri.” Then, he veered into broken down car on the shoulder, killing a mother and her two daughters.
Burns said that trucker had privily received “safe driver” awards.
“He was not a safe driver; he was a lucky driver,” Burns said. “If you can identify these drivers, retrain them and tell them what's important to you, they will comply.”
Cameras may also be the best defense, as explained in a recent FleetOwner feature on camera tech.
A truck operated by Atlas Trucking & Logistics was involved in an accident where a passenger car driver was left a quadriplegic and the company was facing a potential “$40 million lawsuit that we would have lost,” explained Jeff Bronson, senior director of transportation at Atlas.
The camera showed the truck driver was not at fault, contrary to the police report. Burns said he can recall at least three times where a police report was wrong.
Even if the truck driver was at fault, the video could prove that the driver was doing something outside of what they were trained to do, therefore absolving the carrier and protecting against a mega deal or large settlement.
“If I were a motor carrier, there's no way that I would operate a business without real-time telematics, without [outward and inward] facing cameras, and without automatic emergency braking,” Burns said. “I just would never allow a big truck out under my name without them.”
